Retuta v. Holder (9th Cir. 2010)

In this case, the 9th Circuit addressed the question of whether the definition of a “conviction” in accordance with 8 U.S.C. § 1101(a)(48) includes a judgment that withholds an adjudication of guilt and that only imposes a suspended fine.  The case arose because DHS placed Retuta, an immigrant from the Philippines, in removal proceedings on account of multiple criminal convictions, two of which were for possession and use of a controlled substance.  During the proceedings, the government failed to prove with sufficient evidence that he had other convictions aside from the controlled substance convictions.  Therefore, the controlled substance convictions were the only bases for removal.

The immigration judge who heard the case found Retuta to be removable as charged.  On appeal, Retuta argued that his controlled substance violations did not count as “convictions” in accordance with the removal statutes because his judgment was deferred and he suffered no form of punishment—just a $100 fine which was suspended.  In situations, as in this case, where there is no formal adjudication of guilt, DHS must establish that: (1) there was a finding of guilt or sufficient facts to support such a finding; and (2) some punishment, penalty, or restraint on liberty (including suspended sentences where there is some form of incarceration) was imposed.  Retuta argued that DHS could not establish the second criterion because he suffered no punishment, penalty, or restraint on his liberty.  Therefore, he had no “conviction” which would make him liable for removal.

The 9th Circuit agreed with Retuta, and concluded that the definition of “conviction” under § 1101(a)(48) does not include a deferred criminal judgment whose only consequence is a suspended fine.  An unconditional suspended sanction which did not include a form of incarceration cannot be construed as a conviction for purposes of removal.  Not only was Retuta’s judgment deferred, but his small fine was also suspended.  He suffered no loss of wealth, nor loss of liberty.  Thus, he suffered no punishment, penalty, or restraint of liberty as contemplated by § 1101(a)(48).  Congress, when enacting § 1101(a)(48) chose to define a “conviction” to mean both a finding of guilt and a showing that some form of punishment was imposed.  The failure of DHS to prove the latter meant that Retuta had no conviction which made him removable.

In this case, the 9th Circuit also decided the question of whether a judges’ minute order which was rendered on a standardized form with checked boxes, abbreviations, and acronyms would be sufficient to establish a criminal conviction for purposes of removal.  On this issue, the court found against Retuta.  However, this finding was nullified by the fact that DHS could not show that he suffered any punishment for his conviction.